The Department of Education's announcement this week that it will create a list of religiously affiliated schools exempted from federal policies banning sexual and gender identity-based discrimination was seen as a victory for LGBT activists and a harbinger of trouble for religious liberties.
The letter to Senate leaders from Catherine Lhamon, assistant secretary of the U.S. Department of Education's Office for Civil Rights, comes a month after the Human Rights Campaign, one of the nation's leading advocacy groups for lesbian, gay, bisexual and transgender Americans, called for such a list, noting that 56 schools have received these exemptions since 2013, even as widespread confusion about what these exemptions mean persists.
"We believe that religious liberty is a bedrock principle of our nation; however, faith should never be used as a guise for discrimination. Prospective students and their families deserve greater transparency," said HRC president Chad Griffin in a December press release.
But defenders of the schools contend school policies are already available to students and warn that the online list is a thinly veiled effort to degrade constitutionally guaranteed religious protections.
"I think the HRC is trying to blacklist institutions of faith," said Roger Severino, director of the DeVos Center for Religion and Civil Society at The Heritage Foundation.
The path forward is unclear, and the only thing the two sides of this debate seem to agree on is how high the stakes are, said Doug Laycock, a distinguished professor of law and professor of religious studies at the University of Virginia School of Law and a recognized expert on religious freedom issues.
"There is a need for transparency. Campus rules need to be disclosed so that students who don't want to be at these schools don't make the mistake of going there," he said. "However, creating a list (of institutions with religious exemptions) also benefits every political activist in the country," potentially leading to boycotts, vandalism, lawsuits and the erosion of faith-based legal protections.
Why Title IX
The Department of Education's recent announcement centers around Title IX, a legal statute protecting students and staff members from sexual discrimination at academic institutions that receive federal funding.
Passed in 1972, the law seeks to ensure that men and women are treated equally in the areas of admissions, housing, recruitment, athletics, facilities, financial assistance, employment decisions and counseling services.
For decades, religiously affiliated schools could request an exemption to parts of Title IX. For example, a school may want a male-only faculty based on its religious tenets and seek an exemption to protect that.
The majority of exemption requests in the past two years have focused on sexual orientation and gender identity, which Severino said was a natural reaction to the DOE's 2014 announcement that Title IX extends to transgender students.
"If an administration changes the laws or attempts to change the laws out from under the feet of institutions, we should expect them to protect themselves," he said.
Despite DOE's view that Title IX protects against gender-identity discrimination, legal scholars said the appropriate application of the law is unsettled.
"Older cases (involving Title IX) say that sexual orientation and transgender discrimination is not covered, but a few newer cases say the law's general language covers all discrimination," Laycock said.
This confusion complicates debates over religious exemptions to Title IX, including the growing number of legal challenges brought by college or university students and staff.
Religious exemptions do not prevent students from citing the law when questioning campus policies, said Paul Southwick, a Portland, Oregon, attorney who has represented a handful of students challenging their academic institutions' approach to issues like housing for transgender students.
"A student can challenge (their school's exemption) and say that it's either not controlled by a (religious) denomination or that it does not have a religious tenet that would be burdened by Title IX," he said.
The HRC said transparency and understanding were the motives behind its request that the DOE publish a list of schools with religious exemptions. It hopes policymakers will also require institutions to publish comprehensive information about their approach to LGBT students.
"I think it's an important but moderate move on the part of HRC," Southwick said. "They're not saying you can't do this. They're just saying you need to be transparent."
Southwick, who is gay, knows the stress LGBT students can experience. He attended George Fox University, a school with an "evangelical and Christian ethos," according to its website.
"I was not fully aware or completely comfortable with my own sexual orientation" and staff members and fellow students weren't either, he said.
Southwick said that his clients who have attended or worked at similar schools were aware of school policies but "had no idea they would get in trouble because of the requests they made."
"They knew it was a Christian institution, but they didn't know how hostile the school would be," he said.
Colleges and universities with religious exemptions to Title IX would not characterize their approach to the LGBT community as hostile. Hunter Baker, a religious liberty fellow at the evangelical Christian Union University, said in an email that campus policies are designed to uphold religious values while still being inclusive.
Religiously affiliated schools "want our educational work to have integrity," he said. "That means we apply our beliefs to our teaching, our scholarship, our student life policies, our hiring and everything else we do."
After Southwick challenged his alma mater's housing policy for a transgender student in 2013, the school reformulated its policy to provide transgender students with a private living space and restroom. They can request to share on-campus housing with other members of their legally recognized gender.
"We want all students to feel welcome here," said Jere Witherspoon, executive assistant to the vice president of student life at George Fox University.
What's at stake
The HRC's focus on religious exemptions to Title IX has religious freedom activists on high alert because responses from the DOE and lawmakers could hold serious implications for religious schools, Laycock said.
"An attack on Title IX is politically significant because it's been in place for 35 or 40 years. This is an effort to roll back the status quo, not just the enactment of new exemptions," he said.
According to legal experts, cases like Southwick's are increasing and will likely become more common as college campuses emerge as a key battleground in the growing conflict over LGBT rights and religious freedom.
Another area of conflict has been small businesses that don't want to serve or employ LGBT people.
But what makes college campuses unique is the role they serve in society, Laycock added. Campuses are home to a group of Americans more accepting of gay rights than any other generation.
"They're a target of opportunity," he said.
Similarly, Severino described college campuses as places where young people solidify their identity. If religious institutions are required to uphold secular views on sexual orientation and gender identity, their ability to pass on faith-based teachings on sexuality is weakened, he said.
"Schools and universities have been targeted by the left because that is where the next generation is, in large part, shaped and influenced. (The influence) is precisely why religious institutions should be free to pass on their message," Severino said.
At this stage of the brewing conflict, neither side appears willing to reach a compromise.
"The gay rights side wants their unlimited freedom in every place and every context. And a lot of folks on the conservative side don't want gay rights to exist in the first place," Laycock said.
In a press release this week, the HRC celebrated the DOE's decision, noting that it also wants Congress to amend the law to require the administration to report the number of Title IX exemptions requested, granted and denied.
Southwick said an ideal eventual outcome of the HRC's efforts would go beyond transparency and involve religious schools and universities giving up federal funding in order to be free to control the campus environment as they see fit.
However, Laycock said that giving up that funding would be unsustainable for most colleges and universities that rely on government financial aid to help students with tuition.
For Severino, the best result of recent activism around Title IX would be reprioritizing religious freedom as the bedrock on which other legislation should be built.
"You don't guarantee religious liberty by labeling mainstream religious beliefs as discriminatory and then begging for an exemption," Severino said. "That's not balancing. That's taking one side in the debate. The question would become: How much religious liberty is left?"
Resolving the conflict over Title IX exemptions will require both sides to give up the notion of winning the entire war and to recognize the value of compromise, Laycock said.
"You strike the balance at a more global level," he said. "You protect religious liberty in religious places and contexts, and you keep the number of exemptions small enough so that the gay community can live its life and have access to goods and services it needs without constantly running into discrimination."
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